ANNAPOLIS – The Court of Appeals has reinstated a lawsuit against a doctor who used a Baltimore man’s confidential medical history, without the patient’s knowledge, to defend himself in a malpractice case.
Lower courts were troubled by the fact that Dr. Brad Lerner apparently was able to “rummage through the records” of Union Memorial Hospital to get information on William S. Warner, who was not his patient.
But Baltimore Circuit Judge David B. Mitchell said Lerner was protected by a law that said “any provider” may obtain “any record” of “any patient” if the records are needed in a malpractice claim.
Judge Mitchell threw out Warner’s lawsuit against Lerner and the Court of Special Appeals agreed.
But the high court reversed those rulings on Thursday, saying Lerner’s “alleged self-help approach” violated Warner’s rights by taking the records without at least asking him or the hospital first.
Warner was a patient of Dr. Horst Schirmer’s, who was to testify in 1993 in the mediation of a malpractice claim against Lerner. Both doctors are urologists with privileges at Union Memorial.
The appeals court said Lerner took Warner’s urological records without his consent from the hospital’s computer system and gave them to his attorney, who used the information to cross- examine Schirmer.
Lerner’s attorney, E. Dale Adkins III, said Thursday that there is no proof his client “wrongfully obtained” the medical records, as the court claimed.
“There was no evidence, no testimonies and no depositions,” said Adkins.
But the court said there was no question that neither Warner nor the hospital was asked for the records before they ended up in Lerner’s hands.
Judge Alan M. Wilner, in the opinion for the appeals court, wrote that the hospital “may well have opted to disclose” the information without consulting Warner or Schirmer or may have released the records with conditions. The hospital would have been permitted to release the information if it was subpoenaed, for example.
“As a result of Lerner’s alleged self-help approach the hospital never had an opportunity to do any of those things,” Wilner wrote.
The decision was praised by Warner’s attorney, Marvin Ellin, as a “splendid ruling.”
“The wrongful obtaining of embarrassing and personal medical records that can go back to childhood should not be tolerated,” said Ellin.
“Mr. Warner had absolutely no purpose or interest in the lawsuit. It’s just plain wrong to get someone’s personal records,” he said.
In a concurring opinion, Judge Irma Raker said she could not believe that the 1990 Maryland Confidentiality of Records Act was ever intended to allow the release the “highly intimate” medical information, as lower courts ruled.
Even Mitchell, in the original circuit court decision in the case, expressed dismay at the result of his ruling.
“We are troubled here … that in this society, where so much of our interests, our knowledge, and our records are subject to review without our being aware of it, that an uninterested person, clothed only with the mantle of a doctor of medicine degree or licensure, can rummage through the records of a hospital and obtain information about patients,” Mitchell wrote.
The high court ordered Warner’s suit back to circuit court for trial.